Clearly Professors McGraugh and Harrison have spent way too much time locked away in the Ivory Tower of Academia (Public Defenders must give adequate time to clients-August 3, 2010).Before they attempt to describe life in the real world they need to live here for a time.

If they lived here with the rest of us, they would know the State of Missouri gives the Missouri State Public Defender System (System) $38,000,000 per year and gives Missouri prosecutors $0.00 per year. They would know that public defenders do not "…start from scratch…" but are provided, without charge, all police reports, witness statements, photographs and any and all other evidence gathered by law enforcement on each and every case. They would know that the Constitutions of the United States and the State of Missouri guarantee all defendants the right to a trial by jury and that the victim's of crime do not have such a right. They would know that a public defender failing to properly represent a client is simply called "ineffective" and the defendant is granted new trial not monetary damages. They would know that no public defender has ever been successfully sued for malpractice because of incompetence. They would know that the victim must relive the tragedy through another trial because the public defender was ineffective or incompetent.

The good professors and Missouri's Prosecutors are in complete agreement that a properly funded and staffed indigent criminal defender System (prosecutors are actually the defenders of the public) is vital to the American ideal that justice must be done in every case regardless of the stature of the criminal defendant or the victim. Our disagreement centers on the purported crisis in the System and their questionable expenditure of millions of tax dollars.

That is why I have requested the Auditor of the State of Missouri to conduct a performance audit of Missouri's indigent criminal defender System. It is not possible to devise a solution unless and until an independent authority determines the existence and extent of a problem. I have attached a copy of my request or it can be viewed in it's entirety on my website www.stlouisco.com/pa

Very Truly Yours,

Robert P. McCulloch

Prosecuting Attorney

Honorable Susan Montee

Auditor, State of Missouri

State Capitol Building, Room 121

Jefferson City, MO 65102

Dear Auditor Montee:

As you know the Missouri Public Defender System (MPDS) has been seeking a significant increase in its budget and a significant reduction in its workload. The Missouri Legislature approved SB 37 during the 2009 legislative session. They did so without adequate and reliable information. In a nutshell, the legislation granted both requests and enacted a variety of other provisions relating to the criminal justice system. After a through review and recognizing all of the issues created by the legislation Governor Nixon vetoed the bill.

Since that time the MPDS has continued its quest to increase funding and reduce workload. Their latest action is to refuse to represent those individuals entitled to their services. The purpose is to force the State of Missouri to comply with their demands of more money and less work. The MPDS has provided only the total number of files they claim they have opened during a particular period in a particular circuit. This presents a problem because the number they provide is usually twice as large as the number of cases in which OSCA records show they actually represent the defendant.

The problem is, and has been, that no one can confirm the existence of the "crisis" and, if one exists, the extent of the problem. Until all interested parties have accurate numbers it is not possible to determine if the MPDS is overburdened and, if so, the extent of the excess work. Therefore it is not possible to determine what, if any, remedy is necessary. I have attached copies of letters I sent to the Governor and to various legislators during the past few years documenting the discrepancies in the case numbers. The discrepancy in the numbers is not limited to St. Louis County. The same problem is present in every Circuit in the State in which the MPDS has provided numbers. I have also included a copy of the Public Defender Commission CASELOAD CRISIS PROTOCOL for your reference. This document sets out the formula by which the MPDS has determined that their attorneys have only 6.6 hours per day to work on cases. Through this PROTOCOL the MPDS alone determines when they have too many case.

Additionally, serious questions exist regarding the manner in which the MPDS spends the taxpayer money, $38,000,000, currently provided by the State of Missouri. Everyone recognizes that attorneys representing clients must have great leeway in that representation. However, resources are not unlimited and must be use as efficiently and effectively as possible.

I would like to provide a few brief examples. A St. Louis County jury sentenced Kevin Johnson to death. The Public Defender Capital Division represented him. The Supreme Court has affirmed his conviction and sentence and he has filed a Post Conviction Motion alleging ineffective assistance by the trial attorneys. The Public Defender Appellate Division now represents him. Even though the PD Appellate Division has an office in St. Louis, the two attorneys assigned to the case are from the Kansas City and Columbia PD offices. Both attorneys routinely travel to St. Louis County to attend ministerial, non-testimonial hearings. PD Attorneys from the Kansas City and Columbia offices also represent Kenneth Baumruk and Leonard Taylor, both St. Louis County death penalty cases. The attorneys attend all hearings oftenwith support staff. In a different Post Conviction St. Louis County death penalty case the MPDS has already paid over $35,000 to two psychiatrists from California and Idaho to testify about what they would have said had they been called during the trial. The PD trial attorneys called a different doctor during the actual trial. That doctor's testimony was essentially the same as the California and Idaho doctors. This amount does not include travel or any other expenses.

These concerns are not unique to St. Louis County. The same questionable expenditure of funds is reported across the State. The exact, or even approximate, figure spent by the MPDS is unknown. Nor does anyone know the amount expended on "experts" never used or outside attorneys paid to handle cases. The above cases are simply to illustrate the problems. They are not the only examples.Similar situations exist in nearly every Circuit in this State.

It is possible, though highly unlikely, that every expenditure was absolutely appropriate and necessary. However, based upon the experience of prosecutors around the State of Missouri it is much more likely that a significant amount of MPDS budget could be better spent on actually representing clients. However, without an independent assessment we will never know.

Therefore, pursuant to Section 29.200 RSMo, I am respectfully requesting that you conduct a performance audit of the Missouri Public Defender System. Thank you for attention to this matter and please do not hesitate to contact me if you have questions or need additional information.